FMLA Gets a Facelift

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Employment lawyers got a big package just after Christmas—some 750 pages of sweeping changes to the federal Family and Medical Leave Act—but it will take some time to determine what to do with this “gift.”

Zachary Hummel, a partner at Bryan Cave in New York City, advises employers to contact their labor lawyers to know the full extent of the FMLA changes, and to ensure that their employee handbooks address those changes. “If employers get their hands around this and make the changes necessary,” he says, “I don’t see any more litigation over it than the previous version.”

Enacted by Congress in 1993, the FMLA was designed to help employers and employees navigate through issues when time off from work is necessary for health reasons or family emergencies. The law affects companies with 50 or more employees in a 75-mile radius and allows for up to 12 weeks of unpaid leave each year to attend to a serious health problem that either the employee or a family member experiences, as well as other family matters such as adoption.

Changes to the law, which went into effect on Jan. 16, are two-pronged. The new regulations provide more time to members of military families—up to 26 weeks a year—to attend to an ailing soldier or his or her business during deployment. Other changes center on when an employee can ask for leave and what documentation must be provided to the employer to ensure the request is legitimate.

One of the most significant changes allows employers to contact employees’ health care providers to get more details as to how much time off is needed and when. This is particularly important when it comes to employees asking for intermittent time off.

An employee may be well enough to work, but need hours off for therapy or rest. Such situations often play havoc with employers. The airline industry is particularly affected, notes Raymond Bertrand, a San Diego-based partner at Paul Hastings.

“A few minutes of FMLA time can result in an employee missing a flight,” Bertrand says, and possibly leaving flight crews short of needed personnel.

And there is the problem when some employees appear to suffer the “I don’t like Mondays” syndrome.

“There is a higher use of FMLA on Mondays and Fridays than any other days of the week,” Bertrand says. Allowing employers to talk to the employee’s doctor could reduce that problem or at least confirm the necessity to take extended weekends.

“The new rule is viewed as an employer-friendly rule,” concedes Steven W. Moore, a co-editor of the ABA’s Labor and Em­ploy­ment Law Newsletter. A partner in the Den­ver office of Baker & Hostet­ler, Moore represents employers. He calls the old law “cumbersome and expensive” and believes the changes will help clarify what employers need to do.

Mark Risk, another co-editor of the newsletter, lauds the changes for recognizing there could be problems if an employee’s direct supervisor could call the doctor to ask about the reasons behind a request for leave. The new law insulates the employee from intrusion by his direct boss. Human resources now will be the most likely department to inquire about leave certification.

According to Risk, a New York City lawyer who focuses on employee rights in his private practice, this has always been a difficult area. Employers feel they have the right to inquire as to whether the circumstances warrant FMLA leave. Em­ployees have legitimate concerns over medical privacy and often don’t want their conditions broadcast to the workplace.

The regulations take these concerns into consideration and abide by the privacy barriers established by the Health Insurance Portability and Accountability Act, Risk says.

“The Department of Labor thinks one way they’ve tried to express it is by absolutely prohibiting the supervisor from contacting the health care provider,” he says. “It has ideally got to be the human resources or managerial people, but not the direct supervisors.”

By the same token, the regulations also address whether a health care provider is legitimate enough to sign a medical leave certificate. Faith healers need not apply, says Hummel, recalling one instance just after the act became law where an employee in California sought leave and got a “certified reality therapist” to sign the leave documents.

“The law gives some leeway for individuals to consult practitioners, but even under the FMLA at the time we denied the leave,” he says. “It was not challenged.”

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